M.R. v. Thomas

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-614-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 14, 2009

Before Judges Skillman and Simonelli.

Defendant Fuquan Van Thomas appeals from a final restraining order entered on September 3, 2008, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (PDVA). We reverse.

On August 25, 2008, plaintiff obtained a temporary restraining order against defendant. At the hearing on September 3, 2008, defendant advised the trial judge that he had just received a copy of the complaint the day before. When the judge asked if defendant was prepared to defend this matter, defendant responded, in relevant part, "I don't know exactly how I could defend myself against this other than to hire an attorney[,] maybe to, you know, [to] represent [me] because I don't know where [plaintiff is] coming from . . . because in this report it doesn't reflect a police officer that I dialed . . . to come to the house." The judge continued the hearing without addressing defendant's late receipt of the complaint or defendant's right to legal representation.

Trial courts are mandated by statute to proceed in a summary manner in domestic violence cases within ten days of the filing of a complaint. N.J.S.A. 2C:25-29a. The PDVA "'was enacted with the expressed intent that courts . . . promptly and appropriately offer protection to victims of domestic violence.'" Depos v. Depos, 307 N.J. Super. 396, 399 (Ch. Div. 1997) (quoting Sperling v. Teplitsky, 294 N.J. Super. 312, 318 (Ch. Div. 1996)). "The legislative intent for such mandates is to assure the victim the maximum protection from abuse the law can provide. N.J.S.A. 2C:25-18. To assure such protection, the court's response must be swift because any delay may pose serious and irreversible consequences to the victim. Thus, domestic violence proceedings are 'immediate.'" Id. at 399-400; However, "'the ten-day provision does not preclude a continuance where fundamental fairness dictates allowing a defendant additional time[,]'" such as when the defendant did not receive meaningful notice and an opportunity to respond to the charges. H.E.S. v. J.C.S., 175 N.J. 309, 323 (2003) (quoting H.E.S. v. J.C.S., 349 N.J. Super. 332, 342-43 (App. Div. 2002)).

Further, given the "'serious consequences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as a serious crime against society[,]'" the court must inform the defendant of these consequences and, where required, give defendant a fair opportunity to defend. Franklin v. Sloskey, 385 N.J. Super. 534, 541 (App. Div. 2006) (internal quote omitted) (quoting Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div. 2004)).

Here, having received the complaint the day before the trial, defendant did not receive meaningful notice and an opportunity to adequately respond to the charges. See H.E.S., supra, 175 N.J. at 324 (finding due process violation where defendant received domestic violence complaint against him only one day prior to return date). Also, the trial judge never advised defendant of the serious consequences associated with the entry of a domestic violence restraining order, never advised defendant that he had the right to have an attorney represent him at the hearing, and never advised defendant that he could request an adjournment to consult with an attorney.

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